Proceeds of Crime Regulations (Amendment) (Cth)

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Statutory Rules 1989 No. 2361

Proceeds of Crime Regulations2 (Amendment)

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Proceeds of Crime Act 1987.

Dated 29 August 1989.

BILL HAYDEN

Governor-General

By His Excellency's Command,

Lionel Bowen

Attorney-General

Commencement

1. These Regulations shall be taken to have commenced on the date of commencement of section 65 of the Law and Justice Legislation Amendment Act 1988.

Principal Regulations

2. In these Regulations, "Principal Regulations" means the Proceeds of Crime Regulations.

Declaration of State laws—definition of "corresponding law"

3. Regulation 3 of the Principal Regulations is amended by omitting paragraphs (b) and (c) and substituting the following paragraphs:

"(b) Confiscation of Proceeds of Crime Act 1989 of New South Wales;

(c) Crimes (Confiscation of Profits) Act 1986 of Victoria;

(d) Crimes (Confiscation of Profits) Act 1989 of Queensland;

(e) Crimes (Confiscation of Profits) Act, 1986 of South Australia;

(S.R. 239/89)—Cat. No. 14/17.8.1989

 

(f) Crimes (Confiscation of Profits) Act 1988 of Western Australia;

(g) Crimes (Forfeiture of Proceeds) Act 1988 of the Northern Territory.".

Declaration of orders—definition of "interstate forfeiture order"

4. Regulation 4 of the Principal Regulations is amended by omitting paragraphs (b) and (c) and substituting the following paragraphs:

"(b) forfeiture orders under subsection 18 (1) of the Confiscation of Proceeds of Crime Act 1989 of New South Wales;

(c) forfeiture orders under subsection 7 (1) of the Crimes (Confiscation of Profits) Act 1986 of Victoria;

(d) forfeiture orders under subsection 8 (1) of the Crimes (Confiscation of Profits) Act 1989 of Queensland;

(e) orders that property be forfeited to the Crown made under subsection 5 (1) of the Crimes (Confiscation of Profits) Act, 1986 of South Australia;

(f) forfeiture orders under subsection 10 (1) of the Crimes (Confiscation of Profits) Act 1988 of Western Australia;

(g) forfeiture orders under subsection 5 (1) of the Crimes (Forfeiture of Proceeds) Act 1988 of the Northern Territory.".

Declaration of orders—definition of "interstate pecuniary penalty order"

5. Regulation 5 of the Principal Regulations is amended by omitting paragraph (b) and substituting the following paragraphs:

"(b) pecuniary penalty orders under subsection 24 (1) of the Confiscation of Proceeds of Crime Act 1989 of New South Wales and drug proceeds orders under subsection 29 (1) of that Act;

(c) pecuniary penalty orders under subsection 12 (1) of the Crimes (Confiscation of Profits) Act 1986 of Victoria;

(d) pecuniary penalty orders under subsection 13 (1) of the Crimes (Confiscation of Profits) Act 1989 of Queensland;

(e) pecuniary penalty orders under subsection 15 (1) of the Crimes (Confiscation of Profits) Act 1988 of Western Australia;

(f) pecuniary penalty orders under subsection 10 (1) of the Crimes (Forfeiture of Proceeds) Act 1988 of the Northern Territory.".

Declaration of orders—definition of "interstate restraining order"

6. Regulation 6 of the Principal Regulations is amended by omitting paragraphs (b) and (c) and substituting the following paragraphs:

"(b) restraining orders under subsection 43 (2) of the Confiscation of Proceeds of Crime Act 1989 of New South Wales;

(c) restraining orders under subsection 16 (7) of the Crimes (Confiscation of Profits) Act 1986 of Victoria;

(d) restraining orders under subsection 17 (8) of the Crimes (Confiscation of Profits) Act 1989 of Queensland;

(e) sequestration orders under subsection 6 (1) of the Crimes (Confiscation of Profits) Act, 1986 of South Australia;

(f) restraining orders under subsection 20 (7) of the Crimes (Confiscation of Profits) Act 1988 of Western Australia;

(g) restraining orders under subsection 14 (2) of the Crimes (Forfeiture of Proceeds) Act 1988 of the Northern Territory.".

Declaration of substances—definition of "narcotic substance"

7. Regulation 7 of the Principal Regulations is amended by omitting "the Schedule" and substituting "Schedule 1".

8. After regulation 7 of the Principal Regulations the following regulations are inserted:

Remuneration of Official Trustee

"8. (1) There is payable to the Official Trustee in respect of the performance or exercise by the Official Trustee of functions, duties or powers under the Act, if the person performing or exercising such functions, duties or powers in the name of, or on behalf of, the Official Trustee:

(a) is a Level 1 officer in the Senior Executive Service of the Australian Public Service or is an officer of a higher classification in the Australian Public Service—remuneration of $150.00 per hour or part of an hour; or

(b) is an Administrative Service Officer, Class 7 in the Australian Public Service or is an officer of a higher classification in the Australian Public Service, not being a classification referred to in paragraph (a)—remuneration of $100.00 per hour or part of an hour; or

(c) is an Administrative Service Officer, Class 6 in the Australian Public Service or is an officer of a lower classification in the Australian Public Service—remuneration of $75.00 per hour or part of an hour;

during which any of those functions, duties or powers are being performed or exercised.

"(2) For the purposes of subregulation (1), a person who, for the time being, is performing the duties of a particular office in the Australian Public Service shall be taken to be the holder of that office.

Costs etc. payable to Official Trustee

"9. There is payable to the Official Trustee an amount equal to the amount of costs, charges and expenses incurred in connection with the performance or exercise by the Official Trustee of functions, duties or powers under the Act.

Notice of application for court order regarding third party interest

"10. (1) For the purposes of subsection 21 (9) of the Act, the following notices are prescribed, namely:

(a) in respect of an application under subsection 21 (1) of the Act—a notice in accordance with Form 1 in Schedule 2; and

(b) in respect of an application under subsection 21 (2) of the Act—a notice in accordance with Form 2 in Schedule 2.

"(2) For the purposes of subsection 23a (10) of the Act, the following notice is prescribed, namely, a notice in accordance with Form 3 in Schedule 2.

"(3) For the purposes of subsection 31 (7a) of the Act, the following notice is prescribed, namely, a notice in accordance with Form 4 in Schedule 2.".

Schedule 1

9. The Schedule to the Principal Regulations is repealed and the following Schedule substituted:

SCHEDULE 1Regulation 7

SUBSTANCES

Column 1

Column 2

Item No.

Substances

1

Acetyl-alpha-methylfentanyl

2

Acetylmorphines

3

Alfentanil

4

Alkoxyamphetamines and bromo-substituted alkoxyamphetamines except where separately specified in this Schedule

5

Alkoxyphenethylamines and alkyl-substituted alkoxyphenethylamines except where separately specified in this Schedule

6

Alpha-methylfentanyl

7

Alpha-methylthiofentanyl

8

Beta-hydroxyfentanyl

9

Beta-hydroxy-3-methylfentanyl

10

4-Bromo-3,5-dimcthoxyamphetamine

11

4-Bromo-2,5-dimethoxyphenethylamine (BDMPEA)

12

3-Bromo-4-methoxyamphetaminc

13

4-Bromo-3-methoxyamphetamine

14

Butorphanol

15

Cannabis Oil

16

Cathinone

17

Coca Leaf

18

Concentrate of Poppy Straw (the material arising when poppy straw has entered into a process for concentration of its alkaloids)

19

4-Cyano-2-dimelhylamino-4,4-diphenylbutane (Methadone intermediate)

20

4-Cyano-l-methyl-4-phenylpiperidine (Pethidine intermediate A)

21

Dexamphetamine

22

Dextromoramide

23

Dextropropoxyphene

24

Difenoxin

25

2,4-Dimethoxyamphetamine

26

3,4-Dimethoxyamphetamine

27

3,4-Dimethoxy-5-ethoxyamphetamine

28

2,5-Dimethoxy-4-ethoxyamphetamine

29

4,5-Dimethoxy-2-ethoxyamphetamine

30

2,5-Dimethoxy-4-ethyl-alpha-methylphenylethylamine (DOET)

SCHEDULE 1-continued

Column 1

Column 2

Item No.

Substances

31

2,3-Dimethoxy-4,5-methylenedioxyamphetamine

32

2,5-Dimethoxy-3,4-methylenedioxyamphetamine

33

2,5-Dimethoxy-alpha-methylphenylethylamine (DMA)

34

3,4-Dimethoxyphenylethylamine

35

3-(l,2-Dimethylheptyl)-l-hydroxy-7,8,9,10-tetrahydro-6, 6,9-trimethyl-6H-dibenzo[b,d]pyran (DMHP)

36

Drotebanol

37

4,5-Ethylenedioxy-3-methoxyamphetamine

38

Eticyclidine (PCE)

39

Fenetylline

40

3-Hexyl-l-hydroxy-7,8,9,10-tetrahydro-6,6,9-trimethyl-6H-dibenzo [b,d] pyran (Parahexyl)

41

Isomethadone

42

Levamphetamine

43

Levomethamphetamine

44

Levomethorphan

45

Levomoramide

46

Levophenacylmorphan

47

Mecloqualone

48

2-Methoxy-3,4-methylenedioxyamphelamine

49

2-Methoxy-4,5-melhylenedioxyamphetamine

50

4-Methoxy-2,3-methylenedioxyamphetamine

51

5-Methoxy-3,4-methylenedioxy-alpha-methylphenylethylamine (MMDA)

52

2-Methoxy-3,4-methylenedioxyphenylelhylamine

53

3-Methoxy-4,5-methylenedioxyphenylethylamine

54

4-Mcthoxy-alpha-methylphenylethylamine (PMA)

55

4-Methoxyphenylethylamine

56

2-Methyl-3-morpholino-l,1-diphenylpropane carboxylic acid (Moramide intermediate)

57

l-Methyl-4-phenyl-4-propionoxypiperidine (MPPP)

58

l-Methyl-4-phenylpiperidine-4-carboxylic acid (Pethidine intermediate C)

59

3,4-Methylenedioxy-N,alpha-dimethylphenylethylamine (MDMA)

60

3,4-Methylenedioxy-N-ethylamphetamine (MDE)

61

3-Methylfentanyl

62

3-Methylthiofentanyl

63

Morphine Methobromide

64

Muscimol

65

Nabilone

66

Para-fluorofentanyl

67

Phencyclidine (PCP)

68

l-Phenylethyl-4-phenyl-4-acetoxypiperidine (PEPAP)

69

4-Phenylpiperidine-4-carboxylic acid ethyl ester (Pethidine intermediate B)

70

Propiram

71

Racemoramide

72

Racemorphan

73

Rolicyclidine (PHP,PCPY)

74

Sufentanil

75

Tenocyclidine (TCP)

76

2,3,4,5-Tetramcthoxyamphetamine

77

Thiofentanyl

78

Tilidine

79

2,3,4-Trimethoxyamphetamine

SCHEDULE 1—continued

Column 1

Column 2

Item No.

Substances

80

2,3,5-Trimethoxyamphetamine

81

2,3,6-Trimcthoxyamphelamine

82

2,4,5-Trimethoxyamphetaminc

83

2,4,6-Trimethoxyamphetamine

84

3,4,5-Trimethoxy-alpha-methylphenylethylamine (TMA)

85

l-(3,4,5-Trimethoxyphenyl)-2-aminobutane

86

2,4,5-Trimethoxyphenylethylamine

87

Substances structurally derived from methoxy-phenylethylamine other than:

(a) methoxyphenamine; or

(b) a substance separately specified in an item in this Schedule

88

A substance which is, in relation to a substance specified in an item in this Schedule:

(a) an active principal of that specified substance; or

(b) a preparation or admixture of that specified substance; or

(c) a salt of that specified substance or active principal;

except where the first-mentioned substance is separately specified in an

item in this Schedule

89

A substance (being a drug analogue) which is, in relation to another substance (being a narcotic substance within the meaning of the Customs Act 1901 or a substance specified in an item in this Schedule (other than this item), or a stereoisomer, a structural isomer (with the same constituent groups) or an alkaloid of such a drug or substance):

(a) a stereoisomer; or

(b) a structural isomer having the same constituent groups; or

(c) an alkaloid; or

(d) a structural modification notionally obtained in one or more of the following ways:

(i) by the replacement of up to 2 carbocyclic or heterocylic ring structures with different carbocyclic or heterocyclic ring structures; or

(ii) by the addition of hydrogen atoms to one or more unsaturated bonds; or

(iii) by the addition of one or more of the alkoxy, cyclic diether, acyl, acyloxy, mono-amino or dialkylamino groups (with up to 6 carbon atoms in any alkyl residue), alkyl, alkenyl or alkynyl groups (with up to 6 carbon atoms in the group, where the group is attached to oxygen (for example, an ester or an ether group), nitrogen, sulphur or carbon) or halogen, hydroxy, nitro or amino groups; or

(iv) by the replacement of one or more of the groups specified in subparagraph (iii) with another such group or groups; or

(v) by the conversion of a carboxyl or an ester group into an amide group; or

(e) otherwise a homologue, an analogue, a chemical derivative or a substance substantially similar in chemical structure;

however manufactured or actually obtained, except where the drug analogue:

(f) is a narcotic substance within the meaning of the Customs Act 1901; or

(g) is separately specified in an item in this Schedule.

Schedule 2

10. The Principal Regulations are amended by adding at the end the following Schedule:

SCHEDULE 2

FORMS

FORM 1 Subregulation 10 (1)

COMMONWEALTH OF AUSTRALIA

Proceeds of Crime Act 1987

NOTICE IN RESPECT OF AN APPLICATION UNDER SUBSECTION 21 (1) FOR AN ORDER IN RESPECT OF AN INTEREST IN PROPERTY

To: The Commonwealth Attorney-General

Robert Garran Offices

National Circuit

Barton ACT 2600

The Commonwealth Director of Public Prosecutions

(address of relevant regional office)

(Full name of applicant) of (address), being a person who claims an interest in the property specified in the Schedule, hereby gives notice that application has been made under subsection 21 (1) of the Proceeds of Crime Act 1987 for an order under subsection 21 (6) of that Act in respect of an interest which is the subject of an application for a forfeiture order under subsection 19 (1) of that Act.

The application for a forfeiture order was filed in (name and location of court) on 19 in respect of a conviction within the meaning of section 5 of the Proceeds of Crime Act1987 of (name of convicted person)for (state offence(s))on (date of conviction)by (name and location of court).

The abovementioned person who claims an interest has applied to the court for an order with respect to the interest claimed:

(a) declaring the nature, extent and value (as at the time when the order is made) of that person's interest; and

*(b) directing the Commonwealth to transfer the interest to that person.

*(c) declaring that there is payable by the Commonwealth to that person an amount equal to the value of the interest as so declared by the court.

This application has been set down for *mention/*hearing in the (name and location of court) on  19  at  *a.m./ *p.m.

SCHEDULE

The property to which this notice relates is as follows:

(specify property)

Dated 19

………………………………..

*Applicant giving notice/

*solicitor

*Omit if not applicable.

SCHEDULE 2—continued

FORM 2 Subregulation 10 (1)

COMMONWEALTH OF AUSTRALIA

Proceeds of Crime Act 1987

NOTICE. IN RESPECT OF AN APPLICATION UNDER SUBSECTION 21 (2) FOR AN ORDER IN RESPECT OF AN INTEREST IN FORFEITED PROPERTY

To: The Commonwealth Attorney-General

Robert Garran Offices

National Circuit

Barton ACT 2600

The Commonwealth Director of Public Prosecutions

(address of relevant regional office)

(Full name of applicant) of (address), being a person who claims an interest in the property specified in the Schedule, hereby gives notice that application has been made under subsection 21 (2) of the Proceeds of Crime Act 1987 for an order under subsection 21 (6) of that Act in respect of an interest which was forfeited to the Commonwealth under that Act.

The property to which this notice relates was forfeited by order of (name and location of court)

on 19 following the conviction within the meaning of section 5 of the Proceeds of Crime Act 1987 of (name of convicted person)for (state offence(s)).

The abovementioned applicant has applied to the court for an order with respect to the interest claimed:

 (a) declaring the nature, extent and value (as at the time when the order is made) of the applicant's interest; and

*(b) directing the Commonwealth to transfer the interest to the applicant.

*(c) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value of the interest as so declared by the court.

The application has been set down for *mention/*hearing in the (name and location of court) on

19 at * a.m./* p.m.

SCHEDULE

The property to which this notice relates is as follows:

(specify property)

Dated 19  .

…………………………….

*Applicant giving notice/

*solicitor

*Omit if not applicable.

FORM 3 Subregulation 10 (2)

COMMONWEALTH OF AUSTRALIA

Proceeds of Crime Act 1987

NOTICE IN RESPECT OF AN APPLICATION UNDER SUBSECTION 23a (3) FOR AN ORDER IN RESPECT OF AN INTEREST IN PROPERTY WHICH IS THE SUBJECT OF A FOREIGN FORFEITURE ORDER

To: The Commonwealth Attorney-General

Robert Garran Offices

National Circuit

Barton ACT 2600

The Commonwealth Director of Public Prosecutions

(address of relevant regional office)

SCHEDULE 2—continued

(Full name of applicant) of (address), being a person who claims an interest in the property specified in the Schedule, hereby gives notice that application has been made under subsection 23a (3) of the Proceeds of Crime Act 1987 for an order under subsection 23a (7) of that Act in respect of an interest which is the subject of a foreign forfeiture order.

The foreign forfeiture order in respect of the properly to which this notice relates was registered under the Mutual Assistance in Criminal Matters Act 1987 by order of (name and location of

court) on 19   and made with respect to the conviction of (name of convicted person)for (state

offence(s)) on 19  by (name and location of court).

The abovementioned applicant has applied to the court for an order with respect to the interest claimed:

 (a) declaring the nature, extent and value (as at the time when the order is made) of the applicant's interest: and

*(b) directing the Commonwealth to transfer the interest to the applicant.

*(c) declaring that there is payable by the Commonwealth to the applicant an amount equal to

the value of the interest as so declared by the court.

The application has been set down for *mention/*hearing in the (name and location of court) on

19 at * a.m./* p.m.

SCHEDULE

The property to which this notice relates is as follows:

(specify property)

Dated 19  .

..………………………………

* Applicant giving notice/

*solicitor

*Omit if not applicable.

FORM 4 Subregulation 10 (3)

COMMONWEALTH OF AUSTRALIA

Proceeds of Crime Act 1987

NOTICE IN RESPECT OF AN APPLICATION UNDER SUBSECTION 31 (1) FOR AN ORDER IN RESPECT OF AN INTEREST IN FORFEITED PROPERTY PREVIOUSLY THE SUBJECT OF A RESTRAINING ORDER

To: The Commonwealth Attorney-General

Robert Garran Offices

National Circuit

Barton ACT 2600

The Commonwealth Director of Public Prosecutions

(address of relevant regional office)

(Full name of applicant) of (address), being a person who claims an interest in the property specified in the Schedule, hereby gives notice that application has been made under subsection 31 (1) of the Proceeds of Crime Act 1987 for an order under subsection 31 (6) or (7) of that Act in respect of an interest which was forfeited to the Commonwealth under subsection 30 (1) of that Act.

The property to which this notice relates was forfeited under section 30 of the Proceeds of Crime Act 1987 on   19  following the conviction within the meaning of section 5 of that Act of (name of convicted person)for a serious offence within the meaning of that Act, namely (state offence(s)) by (name and location of court).

The abovementioned applicant has applied to the court for an order with respect to the claimed interest:

(a) declaring the nature, extent and value (in the case of an order under subsection 31 (7) of the Proceeds of Crime Act 1987 as at the time when the order is made) of the applicant's interest: and

SCHEDULE 2—continued

*(b) directing the Commonwealth to transfer the interest to the applicant.

*(e) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value of the interest as so declared by the court.

*(d) declaring that section 30 of the Proceeds of Crime Act 1987 shall cease to operate in relation to the interest if payment is made in accordance with section 33 of that Act.

The application has been set down for *mention/*hearing in the (name and location of court) on

19 at * a.m./* p.m.

SCHEDULE

The property to which this notice relates is as follows:

(specify property)

Dated 19  .

……………………………

* Applicant giving notice/

*solicitor

*Omit if not applicable.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 5 September 1989.

2. Statutory Rules 1987 No. 224.

Printed by Authority by the Commonwealth Government Printer

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